A publication ban that shut down reporting on a murder trial of a Hay River man for its first week has been lifted.
On Friday, in a rare move for a judge, Northwest Territories Supreme Court Justice Andrew Mahar apologized for imposing the ban. "In the heat of getting the trial going I didn't give this issue proper consideration," he said.
Reporters were in court last Monday morning for the start of the trial of James Thomas. He is charged with first degree murder and robbery in connection with the death of Alex Norwegian in Hay River in late December of 2017.
The reporters left minutes later, after Mahar imposed a sweeping ban on all reporting on the trial until after the jury trial of co-accused Levi Cayen. In their request for the ban, prosecutors said it was necessary because any reporting on Thomas's trial would make it very difficult to find impartial jurors for Cayen's trial, which is scheduled to be held in Yellowknife starting Feb. 28, 2022.
On Tuesday, after inquiries from CBC News, prosecutors acknowledged they had failed to provide the media with advance notice of their request for the ban. Notice is required by the rules of court.
Though they failed to provide notice of the request for the overall ban, prosecutors had notified media of a ban they sought on publication of autopsy photos they planned to enter as exhibits.
The ban was also not mentioned when CBC News contacted the prosecutors' office, a week before the trial started, to ensure media would have timely access to exhibits while the hearing took place. At the time, the prosecutor said copies of exhibits would be made available.
On Friday, at the request of the prosecutors, Mahar changed the ban to allow media to report on Thomas's trial as it unfolds. The ban will now only come into effect 120 days before Cayen's trial.
Failure to notify leads to change of heart
Why did the prosecutor's change their minds? Prosecutor Stephen Straub told the judge that the Crown took another look at the ban it had requested after realizing it had failed to provide advance notice to the media.
Straub said that, on review, the initial ban failed to strike the proper balance between protecting the fair trial rights of Cayen and the media's constitutionally protected right to report on the trial.
Around the same time CBC News also notified the prosecutor it intended to challenge the ban and had engaged a lawyer, Tess Layton, who had successfully challenged a similar ban the Crown sought just five months ago.
In that case, the prosecutor initially called for no reporting on the sentencing of two people who admitted to being accessories after the fact to the murder of a young woman in Yellowknife. The prosecutor initially requested the ban remain in place until jurors had been selected for the trial of Devon Larabie, the person accused of murdering the woman.
No date had been set for Larabie's trial. In fact, his preliminary inquiry, to determine if there is enough evidence to go to trial, has yet to be held.
After CBC News indicated it would be challenging that ban, the prosecutor narrowed its request to a ban on only the facts of the case, as detailed in a summary, known as an agreed statement of facts. The prosecutor argued the facts were so graphic that they would stick in the minds of potential jurors, jeopardizing Larabie's right to a fair trial. CBC News challenged it anyway.
In refusing to impose the ban, Justice Karan Shaner said, "the contention that the minds of potential jurors will be so poisoned by the contents of the [agreed statement of facts] that it will be too difficult to select an impartial jury is entirely speculative. This is something that the Court is being asked to accept as fact without an evidentiary foundation."
Shaner went on to say, "the importance of the open court principle in a free and democratic society cannot be underestimated. It is a key element in holding the administration of justice accountable to justice system participants and the public at large."
The sweeping publication bans the prosecutor applied for in these cases is a departure from a more restrained approach it took at the sentencing hearings of two others charged in connection with Norwegians death.
In January 2019, Sasha Cayen and Tyler Cayen were sentenced after reaching plea deals with the prosecutor. At that time the prosecutor called for the same ban the court imposed in the Thomas case on Friday — one that comes into effect only 120 days prior to any jury trial of a co-accused.
No one at the prosecutor's office was available to explain in an interview why the Crown initially applied for a ban that would have delayed reporting on Thomas's trial for at least 10 months. An official pointed to a Public Prosecution Service of Canada Deskbook and said decisions on publication bans are based on the unique circumstances of each case.